The PA Supreme Court's affirmance of the conviction of the King of the Molly Maguires

5 W.N.C. 81, 85 Pa. 127, 1878 WL 13827 (Pa.)

Supreme Court of Pennsylvania.
Kehoe
v.
The Commonwealth.
Oct. 1, 1877.

*1 1. Where several parties unite to make an assault, which results in homicide the acts and declarations of the defendant immediately prior to the assault, what was said in his presence by those acting in concert with him, and what occurred after the attack, are competent evidence.

2. In a trial for homicide it was shown that the deceased was terribly beaten and left insensible by his assailants. He was carried to a house near by, and on the following morning started to his home, about a mile distant, unaccompanied and on foot. About midway to his home he was met by an acquaintance, whom he accosted, saying, “Bill, it is all up with me; I will never get over it;” and then went on to speak of his wounds and how they were inflicted, and from the effects of which he died two days thereafter. Held, that this evidence was properly received as dying declarations.

3. Where one has been convicted of an infamous crime, but not sentenced, and motions in arrest of judgment and for a new trial are pending, he is not a competent witness for another who was jointly indicted for the same offence and granted a separate trial.

4. Where several parties are jointly indicted and separate trials granted, one who has not yet been tried is not a competent witness for either of the others on trial.

5. It seems that when the essential ingredients of murder at common law, or murder of the second degree, under our code, are shown to exist, the burden of raising the grade to murder of the first degree devolves on the Commonwealth.

6. All the ingredients necessary to constitute murder of the first degree were found to exist in this case.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Oyer and Terminer of Schuylkill county: Of July Term 1877, No. 29. Certified from the Eastern District.

Indictment of John Kehoe for the murder of Frank W. S. Langdon. On the night of Saturday the 14th of June 1862, Langdon was severely beaten at Audenreid, in Carbon county, and died from the effect of his injuries, at his house in Schuylkill county, on the following Tuesday. About fifteen years thereafter John Campbell, Neal Dougherty, John Kehoe, Michael McGee, Columbus McGee and John Chapman, were charged with and jointly indicted for the murder. Each defendant demanded a separate trial, which was granted, and Campbell and Dougherty were severally tried and convicted of murder in the second degree.

On the 9th of January 1877, before Pershing, P. J., the trial of Kehoe commenced. From the evidence disclosed therein it appeared that Langdon was what was called a “ticket boss” at a colliery, whose duty it was to see that the coal taken from the mines was clean, and if not, to “dock” the delinquent diggers. By his conduct as such “ticket boss” it seemed he incurred the ill-will of the workmen, and a combination was formed to kill him. Kehoe, it appeared, was party to this scheme, and about three weeks before the fatal occurrence which resulted in Langdon's death had said to Langdon, “You son of a bitch, I will kill you before long, because you are robbing me and robbing the men, by your docking.” It was claimed, however, that this remark was made while Kehoe was under the influence of liquor.

*2 On the evening of the 14th of June 1862, a meeting of citizens was held at Williams's hotel, in Audenried, to make the necessary arrangements for the celebration of the approaching 4th of July. Langdon was active in getting up the meeting. Kehoe was there and seemed bent on creating a disturbance. It was shown that in the procession, previous to the meeting, he had taken a flag from Langdon and struck him with it. He spat upon the flag afterwards, and upon remonstrance being made said, he “would do worse than that before he went home.” From the group where Kehoe stood in the crowd pebbles were thrown on the porch where Langdon was, and upon his making his appearance one of the group said, “If they got the son of a bitch off the porch they would kill him.” In this group were the other defendants jointly indicted with Kehoe. When the meeting closed and the crowd, which was composed of about two hundred people, dispersed, Langdon started for his home. Shortly thereafter a man cried out, “Don't, don't, for God's sake don't, I have had enough,” and the rattle of stones was heard as if thrown against a fence. Witnesses who approached the spot whence these cries came found that Langdon had been violently assaulted, and it appeared that there were six men engaged in the assault, one of whom was identified as Kehoe. These six men were recognised as among those who had disturbed the meeting, and had been seen together several times during the evening. After leaving the hotel, Langdon, it appeared, was first assaulted and knocked down by Campbell, and left insensible on the street. He was again attacked while lying there by a party of men, who cast stones at him, some of them weighing two to two-and-half pounds. After lying a short time Langdon regained his feet and tried to escape, but was again followed, and, as the Commonwealth alleged, was again twice knocked down by Dougherty and Kehoe. Shortly thereafter, when found, Langdon was unconscious and terribly lacerated and wounded, from the effects of which injuries he died three days later at his home in Schuylkill county. When found he was carried to the hotel, and the next morning walked to his home, about a mile distant. Very soon after the occurrence it was in evidence that Kehoe and Dougherty were in a saloon not far from where the assault was made, and that they walked up to the bar and one of them remarked, witness thought it was Kehoe, “that they had just been twenty minutes coming from Beaver Meadows,” which was four miles distant, and that Dougherty had a handkerchief over his eye, and said he met a person on the road with a bottle of whiskey and some of it had got in his eye. William King also testified that he met Kehoe, the morning after the affray, and that Kehoe said to him, “They killed Langdon last night;” that witness said “What?” and Kehoe replied, “The boys gave him a devil of a beating,” or “a hell of a beating, last night.” Shortly after the death of Langdon, Campbell and others were arrested in Carbon county, but the grand jury ignored the bill. No further proceedings were had until these were instituted in June 1876, when a true bill was found against all the above-mentioned defendants.

*3 At the trial it was contended, on the part of the defendant, that the testimony relative to the acts and declarations of Kehoe, prior to the assault upon Langdon, and what was said by others with whom it was alleged he was acting in pursuit of their common purpose to attack Langdon, as well as what occurred after he was attacked, should be excluded, and the refusal of the court to do so constituted the assignments of error from one to five inclusive, and the eighth and ninth. These acts and declarations have been chiefly detailed in the foregoing statement of the case.

When on his way home, the morning after the assault, Langdon was met by an acquaintance named Canvin, to whom he said, “Bill, it is all up with me; I will never get over it.” Canvin then tried to encourage him, and remarked he would get over it; and Langdon again said, “Oh, no!” Upon inquiry as to why he had started home, he repeated what he had before said. The Commonwealth then proposed to have Canvin state what Langdon had said about his injuries and how he was beaten, to which objection was made on the part of the defendant that the declarations which were about to be made were not sufficiently shown to be dying declarations; that Langdon lived two days thereafter, and was at this time able to travel without assistance on his way home, half the distance of which he had then traversed. The court allowed the witness to testify, and this constituted the sixth and seventh assignments.

The witness then proceeded to tell what Langdon had stated, which in substance was that he had been three times assaulted and knocked down.

To contradict the testimony of the Commonwealth, showing that these several defendants, who were jointly indicted, were in company on the evening in question, the defence called Neal Dougherty. The latter had been convicted of murder in the second degree for this same crime, and a motion in his case in arrest of judgment and for a new trial was pending. The Commonwealth objected to the witness as incompetent, because he had been convicted of an infamous crime charged in the indictment against him, which was still pending and undetermined.

McGee was also offered, to whom objection was made, on the ground that he was a co-defendant in the indictment with Kehoe; that he had elected to be tried separately, and had not yet been tried.

Both these objections the court sustained, and they constituted respectively the tenth and eleventh assignments of error.

The fourth and fifth points of the defendant were as follows, to which are subjoined the answers of the court:--

4. If the jury believe the evidence of James Shearer and John Cook, that the defendant, Kehoe, was with them in front of the hotel at the time Langdon was beaten and stoned, and that Kehoe was not present at the beating and did not participate therein, the verdict of the jury should be for the defendant.

Ans. “To this we say, yes, with this qualification; that if the jury find from the evidence, that the defendant, as claimed by the Commonwealth, entered into a combination or conspiracy with the other defendants to procure the killing of Langdon; if he counselled the act or procured it to be done, he would be guilty as an accessory before the fact, although absent at the time of the commission of the crime. If present, aiding and abetting, although he did not strike the blow, he would be equally guilty, in the eye of the law, with those who actually did the beating.

*4 5. If the jury believe that a prosecution against John Campbell and others was commenced in Carbon county shortly after Langdon was beaten, and that Young, Horne and others, who now identify Campbell as the person who struck a blow and felled Langdon to the ground, were present before the grand jury and gave their evidence as they then remembered the circumstances, and that the prosecution failed, the jury may take into consideration such facts in connection with the fact, that from the long time (fifteen years) which has elapsed since the injuries were done to Langdon, that there is a strong probability that witnesses may have forgotten the order of events, the particular time of their occurrence and the persons who participated therein, as well as the identity of those whom they supposed they saw.

Ans. “The facts in connection with the legal proceedings in Carbon county have been stated by the witnesses and are for the consideration of the jury. In affirming that we may observe, as the matter has been incidentally discussed, although it is no necessary part of our instruction to the jury, that at one time when a party was beaten in one county and died in another, it was held that the perpetrators of the crime could not be tried in either county, because in neither was the offence complete. It appearing that Langdon was beaten in Carbon county and that he died in Schuylkill county, the existing statute gives jurisdiction of the case to this court.”

The defendant was convicted of murder in the first degree, and was sentenced to be hanged. He then took this writ, his assignments of error being those heretofore noted.